Citation Nr: 1707561
Decision Date: 03/10/17 Archive Date: 03/17/17
DOCKET NO. 09-06 288 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent prior to October 28, 1997, for thoracic myelopathy, status post laminectomy with degenerative disc disease of the lumbar spine.
2. Entitlement to an effective date prior to March 25, 2005, for the award of a total disability rating due to individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
C. Jones, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1981 to July 1992.
These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2006 and July 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.
In the July 2006 rating decision, the RO granted service connection for thoracic myelopathy, status post laminectomy, with degenerative disc disease of the lumbosacral spine and assigned an initial 60 percent rating, effective October 28, 1997. An evaluation of 100 percent was assigned, effective September 9, 1998, based on surgical or other treatment necessitating convalescence. The 60 percent rating was resumed on February 1, 1999. Thereafter, in a December 2006 rating decision, the RO awarded an earlier effective date of July 18, 1992, for the grant of service connection for the appellant's thoracic and lumber spine disability and assigned an initial 10 percent disability rating from that date.
In the July 2007 rating decision, the RO, in pertinent part, granted entitlement to a TDIU, effective July 21, 2005. The Veteran appealed the effective date assigned. Thereafter, in a January 2009 rating decision, the RO granted an effective date of March 25, 2005, for the award of a TDIU. The Veteran continued his disagreement with the assigned effective date.
The Veteran testified before a now-retired Veterans Law Judge (VLJ) at a Board hearing in September 2012 regarding the TDIU issue on appeal. A transcript of the hearing has been reviewed and associated with the claims file. In correspondence dated in December 2016, the appellant was notified that the VLJ who conducted the September 2012 hearing had retired and was provided the opportunity to testify at another hearing. In correspondence received in January 2017, the Veteran declined the option of having another Board hearing.
The issue of entitlement to an earlier effective date for the award of a TDIU was before the Board in April 2013 and was remanded for additional development.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
As noted herein, in April 2013, the issue of entitlement to an earlier effective date for the award of a TDIU was remanded to the AOJ for additional evidentiary development. Pursuant to the Board's April 2013 remand directives, the AOJ was to obtain the appellant's VA Vocational Rehabilitation file. If the file was unrecoverable, a formal finding of unavailability was to be made and the Veteran properly notified of such finding. The Board acknowledged that the claims file contained an email from Vocational Rehabilitation, but determined that the email was not sufficient.
A review of the claims file reveals that efforts were made to obtain the appellant's VA Vocational Rehabilitation file. However, it does not appear that the file was recovered. Moreover, there was no formal finding of unavailability of the Vocational Rehabilitation records. As the AOJ did not comply with the Board's remand instructions, another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998).
With regard to the appellant's service-connected back disability, as detailed herein, in the July 2006 rating decision, the RO granted service connection for the appellant's thoracic and lumber spine disability with an effective date of October 28, 1997, for the award of service connection. In October 2006, the appellant filed a timely notice of disagreement with the assigned effective date.
Thereafter, in a December 2006 rating decision, the RO awarded an earlier effective date of July 18, 1992, for the grant of service connection for the appellant's thoracic and lumber spine disability and assigned an initial 10 percent disability rating from July 18, 1992. In January 2007, the Veteran filed a notice of disagreement with the initial 10 percent rating assigned. The record currently available to the Board contains no indication that a Statement of the Case addressing this matter has been issued. This must be accomplished on remand. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary).
Moreover, because the issue of entitlement to an initial rating in excess of 10 percent prior to October 28, 1997, for thoracic myelopathy, status post laminectomy with degenerative disc disease of the lumbar spine could have an impact on the issue of entitlement to an effective date prior to March 25, 2005, for the award of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Thus, the Board finds that the appellant's claim for TDIU should be held in abeyance, pending resolution of the claim discussed above.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should ensure that a Statement of the Case has been issued to the appellant and his representative addressing the issue of entitlement to an initial rating in excess of 10 percent prior to October 28, 1997, for his service connected back disability. The appellant must be advised of the time limit in which he may file a substantive appeal, if he so desires. 38 C.F.R. § 20.302(b) (2016). This issue should be returned to the Board for further appellate consideration, only if an appeal is properly perfected.
2. Associate with the claims file the Veteran's VA Vocational Rehabilitation file. All efforts to obtain the file should be noted in the record. If it is determined that the appellant's VA Vocational Rehabilitation file is unrecoverable, then a formal finding of unavailability should be made and a memorandum of such finding associated with the claims file and the Veteran properly notified.
3. After the development requested has been completed, and after conducting any additional development deemed necessary, the AOJ should readjudicate the claim of entitlement to an effective date prior to March 25, 2005, for the award of a TDIU, considering all the evidence of record.
If the benefit sought remains denied, the AOJ must provide the appellant and his representative with a supplemental statement of the case and afford them an appropriate period of time for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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K. Conner
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).